Universal demands takedown of homemade dancing toddler clip; EFF sues

The Electronic Frontier Foundation has filed suit against Universal Music …

A 29-second video clip of a toddler dancing to Prince's "Let's Go Crazy" is the subject of a new court complaint against Universal Music Publishing Group, which demanded that the clip be removed from YouTube in early June. Apparently, the company believes that a few seconds of music blasting from a background stereo infringes on its copyright, but the Electronic Frontier Foundation disagrees. The EFF filed suit against Universal yesterday, alleging that the music in the clip was "self-evident non-infringing fair use."

The clip in question has already been reposted and so is still available for viewing on YouTube, but the site has yet to restore access to the original clip. The video of Stephanie Lenz's 18-month old son Holden was uploaded to YouTube back in February; Universal filed a DMCA claim against the clip in early June. Lenz responded with a counter-notification of her own at the end of the month, but the clip was never reinstated. Now, she has joined forces with the EFF to recover damages after she "has been injured substantially and irreparably," according to the court filing. Lenz wants money to cover her legal expenses and wants an affirmative judgment that her clip is not infringing.

Universal has been in this situation before. In fact, it has been in this situation quite recently. In May, parent company Universal Music Group sent a similar takedown to YouTube over a Michelle Malkin podcast critical of the rapper Akon. YouTube reinstated that clip after hearing from the EFF.

Viacom found itself in a similar situation earlier this year when it demanded that a Stephen Colbert parody be pulled. The company eventually admitted that it issued the notice in error and pledged to improve its process for sending out such notices. Before it issues a takedown notice, Viacom will manually review the video in question and that it will educate its reviewers about fair use to cut down on erroneous takedown notices. It will also not challenge the use of its content if it is "creative, newsworthy or transformative" and is "a limited excerpt for noncommercial purposes."

As these case show, people aren't taking these inappropriate takedown notices passively. There has been a growing movement to hold copyright owners responsible when they overstep the limits of fair use, a movement that has had a string of successes over the last year. One would expect that media companies would get more careful about the DMCA takedowns they shoot out, but as EFF attorney Corynne McSherry notes, this newest case "doesn't even pass the laugh test."